The defendant was
convicted of a 1326(a) and (b). His prior conviction, the agg felony theft of a
car, was deemed an agg felony under the state statute.At the prior state plea colloquy, the
defendant admitted to either unlawful driving or taking the car.Although the 9th has previously held that
this statute is divisible, and therefore the modified categorical approach can
be applied to the divisible sections, the defendant argued that under Mathis v. U.S., 136 S. Ct 2243 (2016),
the statute must be regarded as indivisible.Mathis employs approaches to
determining whether a statute is regarded as divisible because it lists
elements disjunctively or indivisible because it enumerates various factual
means.The 9th sidestepped whether Mathis overturns precedent because,
under the facts presented in this case, the defendant had pled nolo, to the
statute; he did not describe specific details, and the record is
ambiguous.Finding an agg felony is
error.

Concurring, after
writing the majority, Thomas states that he regards Mathis as altering the legal landscape, and therefore requiring a
reexamination in the appropriate case.